Basi Reddy, J.
(1) This revision petition has been filed by the plaintiff under S. 12 of the Hyderabad Small Cause Courts Act. It is directed against the judgment and decree of the Court of Small Causes at Hyderabad in Small Cause Suit No. 298/61 decreeing the plaintiff's suit only in part for a sum of Rs. 25 and directing the plaintiff to pay the costs of the suit to the defendant, while dismissing the rest of the claim of the plaintiff . the suit was instituted by the plaintiff for the recovery of rent, water and electric charges amounting to Rs. 105-75 nP. The trial of the suit commenced on 12-7-61 when the witness of both parties were examined and some documents were marked. 'The evidence was closed and the case was posted to 15-7-61 for arguments. On that date, however, the case was adjourned to 19-7-61. On. 19-7-61, the defendant and his advocate were absent. The defendants Advocate addressed arguments and judgment was reserved. Then, on 28-7-61, the learned Additional Judge delivered judgment deciding the case on the merits. After considering the evidence, , the learned Addl. Judge accepted the defendant's case and decreed the suit only for an amount of Rs. 25 and directed the plaintiff to pay the costs of the suits to the defendant.
(2) Thereafter, the plaintiff filed an application (I. A. No. 298/5/61) requesting the Court to restore the suit. The learned Additional Judge held that there was no question of restoring the suit as it had been decreed on merits. Apparently, he was of the view that he had disposed of the suit acting under O. 17 R. 3, C. P. C., which reads as follows:-
'Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed. the Court may, notwithstanding such default, proceed to decide the suit forth with.'
(3) The plaintiff has preferred his revision against the judgment and decree of the lower Court and taken as a ground of revision that the lower Court was in error in the circumstances of this case, in proceeding under R. 3, of O. 17, but should have acted under R. 2 of O. 17, if it did not think fit to adjourn the suit. Rule 2 of O. 17 provides :
'Where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX or make such other order as it thinks fit.'
When this revision came up for hearing before our learned brother, Venkatesam, J., he passed the following order referring the matter to a Bench :
'The contention of Sri Ranga Chari, the learned counsel, is that even after the evidence is recorded , if a suit is posted only for hearing arguments, and the plaintiff's counsel is absent, the Court has no power to decide the case on merits, but must dismiss the suit for default, and that even though the order purports to be one on merits, it is nonetheless a dismissal for default. He also submits that there is no case which has expressly decided this question.
Considering the importance of the contention, I refer the case to a Bench.'
(4) It may be mentioned that there are two Full Bench decisions, one of the Madras High Court and the other of our High Court Pichamma v. Shreeramulu, AIR 1918 Mad 143 (2) (FB) and Agaiah v. Mohd. Abdul Kareem, : AIR1961AP201 , which have taken the view that R. 2 on the one side and R. 3 on the other are quite distinct and mutually exclusive. R. 2, it has been held applies to all cases of absence of parties irrespective of their failure to perform the act necessary to the further progress of the suit notwithstanding the fact that time was granted earlier for that purpose. On the other hand, R. 3 comes into operation only ..... parties are present and are prepared ..... with the further hearing of the case ..... of the kind mentioned in that rule is ..... So the position would be, according ..... decisions, where the parties fail to ..... Court, R. 2 would be applicable and ..... to the Court to dismiss the suit for ..... other alternative being to adjourn it ..... date.
(5) In the present case, ..... 19-7-1961 to which date the case was ..... for arguments, neither the plaintiff ..... cate was present. So, on the authorised ..... Full Bench rulings, the Court should ...... proceeded to act under R. 2 of O. 17 ..... not have decided the case on the ..... purporting to proceed under R. 3 of the ..... so far as our State is concerned, it ..... necessary to rely on the decided case ..... mine whether R. 2 or R. 3 of O. 17 ..... a given case. Rule 3 of O. 17 has ...... and a proviso has been added ..... from 27-4-61 and it reads : -
' Provided that in a case whether ..... default under this Rule as well as ..... appearance under R. 2, the Court is ..... under R. 2.'
(6) The position now, is, even ...... like the present, the Court has either ..... the case or, as provided by O. 9, ..... the suit, unless the defendant admitted ..... or part thereof, in which case the ..... pass a decree against the defendant ..... admission or where a part only of the ..... been admitted, shall dismiss the suit ..... relates to the remainder. If that ..... would be open to the aggrieved part ..... application under O. 9, R. 9 to ..... order of dismissal and show that ..... cause for non- appearance.
(7) It is unfortunate that this ..... law was not brought to the notice ..... Court.
(8) In the result, this revision ..... allowed and the judgment and decreed ...... lower Court set aside. The lower ..... try the suit de novo as it cannot ..... memorandum of evidence already ..... cause the Judge, who is now preside ..... Court of Small Causes, is not the ..... that tried the suit on the prior ..... R. S. Mahmood v. Syed Ahmed ..... : AIR1963AP65 .
(9) Petition .....